Whitewater Township Planning Commission
Minutes of 07/01/09 Regular Meeting

Call to Order
Chairperson Zakrajsek called the meeting to order at 7:04 p.m.
Roll Call
Members Present:Boyd, Courtade, Lyons, Mangus, Miller, and Zakrajsek.
Members Absent:Savage (excused).
Also Attending:Planning/Zoning Administrator Meyers, Planning Intern Akers,
Recording Secretary Pulver, and 10 others.
Set/Adjust Agenda
The meeting agenda was adjusted as discussed.
Approval of Minutes
Lyons moved, seconded by Courtade, to approve the 06/03/09 Regular Meeting Minutes. Motion approved 6-0.
Miller moved, seconded by Lyons, to approve the 05/20/09 Open House Meeting minutes. Motion approved 6-0.
Conflict of Interest
None.
Public Comment
None.
Public Hearing
1. Site Plan Review Consideration – Fire Station/Emergency Services Facility
Zakrajsek opened the public hearing at 7:09 p.m.
Meyers stated notice of the public hearing was published in the Elk Rapids News on 06/11/09.
Meyers presented her staff report dated 06/23/09 entitled Battalion 3 Fire Station/Emergency Services Facility Public Hearing/Site Plan Review (copy attached to original minutes). She stated the Planning Commission has received a request for site plan review for the proposed new facility. The Township Board is pursuing grant opportunities to cover costs associated with construction. In order to apply for the latest grant through FEMA, the project must be "shovel ready," and in this instance, all permits are to be in hand. The Zoning Administrator must receive site plan approval before the land use permit can be issued. If FEMA funds are not granted, the plan may possibly be modified in the future.
Public Comment
None.
Discussion:

•Overall cost of facility is approx. $3.1 million; however need to get site plan approved before moving ahead.

•Cannot request bids until approval of grant is received; therefore cannot specify actual cost.

•FEMA will pay for portion of facility and will have to look to other grant funding to pay for other items.

•When bids are requested, alternatives/options can be included to reduce size or features in the event sufficient grant funds are not received.

•This is a registered LEED (Leadership in Energy and Environmental Design) project with LEED certification. Even though it costs more to be certified, it is money well spent.

Zakrajsek closed the public hearing at 7:17 p.m.
2. ZBA Zoning Ordinance – Article 18
Zakrajsek opened the public hearing at 7:18 p.m.
Meyers stated notice of the public hearing was published in the Elk Rapids News on 06/11/09.
Meyers presented her staff report dated 06/23/09 entitled ZBA Ordinance and Variances (copy attached to original minutes) addressing rehearing of cases by the ZBA, several housekeeping issues, criteria for review of variances granted by the ZBA, and review of the Zoning Administrator or Planning Commission decision.
Discussion:
None.
Public Comment
Lynn DeLong, 722 Island View Drive
18.60: asked for clarification of "the power to interpret and classify a use not specifically mentioned in the Zoning Ordinance." What does this mean and how does it now empower the ZBA to infringe upon the commissions and boards' duties to legislate? Under 18.60 B.3., the ZBA will now be able to interpret that classification as well as spot zone. Instead of going through the Planning Commission and getting Township Board approval, the ZBA will be empowered to do both their jobs in legislating and granting a use variance.
18.70: Regarding the limitation of power of the ZBA, one is that they should not have the power to grant a use variance. However, it provides the exception to classify an unlisted use in an appropriate zoning district for such use. PA 110 of 2006 Sec. 406 states that the authority to grant variances for the uses of land is limited to townships that as of 02/15/06 had specific language in their ordinance that authorized the granting of use variances in townships that granted use variances before that date. How does this proposed exception comply with the law?
18.80 is contradictory in speaking to a denied variance. How does it conform to the law? Does this allow someone other than the applicant to get reversal of an action approved by the ZBA?
18.30 B. Majority Vote. If this Ordinance contains the proposed exceptions to the use variance, then the law requires a 2/3 vote for approval. This situation needs to be addressed as an exception to the proposed language if the current language remains.
Meyers provided responses to Mr. DeLong's comments:
18.60: Meyers stated the purpose of 18.60 B.3. classifies a use which is not specifically mentioned because it was never contemplated, such as cell towers or wind generators. It does not mean that it will allow something that would not otherwise be allowed in that district.
Meyers also stated that a public hearing is held; all ZBA matters have a public hearing. The ZBA is not an elected board but a quasi-judicial board with authority to make decisions per state law. If they are not doing their job, the Township Board may remove them. The ZBA also has the option to determine they cannot classify something and inform the Planning Commission of the same.
18.70: Meyers stated it is not granting a use variance; it is classifying a use to a specific district that is not otherwise mentioned in the ordinance. Just because it was not included does not mean it was not permitted. It was something that was not contemplated at the time. Meyers clarified that classification is different than a use variance.
18.80: Meyers stated it is not contradictory to law. The ZBA decision is rendered final and the applicant has 30 days to appeal the decision. Should they choose not to appeal the decision, they have the right to go back a year later and ask again. New evidence that is discovered can be reheard by the ZBA. Meyers stated she may work on some wording and review a Kalkaska County case in which a person with no interest/equity sought to reverse a decision.
Meyers stated the purpose of this Ordinance is to look at things fairly and objectively; it cannot cover every situation. The Ordinance can still be challenged from both sides. The use variance is the biggest issue. If the Planning Commission recommends to the Board that the ZBA should not grant use variances, alternatives need to be provided.
Zakrajsek closed the public hearing at 7:45 p.m.
New Business
1. Site Plan Review Consideration – Fire Station/Emergency Services Facility
Discussion:
Discussion regarding wastewater containment and also how implications of the location align with the current Master Plan. Community Goals #7 and #8 of the Master Plan were identified. The proposed facility will be built in close vicinity to the village center.

Andrew LaPointe stated approval of the site plan is requested to move forward to obtain building permits so that if FEMA grants are obtained, the project can be bid out and move forward. Any changes to the building plan will have to come back to the Planning Commission for review and approval.
Boyd moved, seconded by Courtade, to approve the site plan as presented. Roll call vote: Mangus, yes; Miller, yes; Zakrajsek, yes; Courtade, yes; Lyons, yes. Motion approved 6-0.
Reports
Correspondence
Meyers stated she distributed various articles of interest to Planning Commission members.
Meyers provided her May 2009 Report (copy attached to minutes).
Meyers stated a used slideshow projector can be purchased for $400. She is also looking into interchangeable name plates/holders for all of the boards and commissions at the suggestions of a member of the press. Name plates/holders will cost approx. $100. Meyers is seeking funding from the budget to cover the cost of these items.
TC-TALUS
Akers stated he attended today’s TC/TALUS meeting. The agenda included review of the Draft Transportation Analysis Report, the Socio-Economic Data Report and the Annual Report. Concern was raised that the consultants would not meet their contractual obligations before their deadline. The Technical Committee has proposed to the Board of Directors that the consultants submit a timeline of how they will meet their obligations in the remaining allotted time.
Township Board Representative
Boyd reported that Grand Traverse County Household Hazardous Waste/Pesticide Collection will be held on 07/30/09 from 1:00 p.m. - 7:00 p.m. Information is available on the web site ( or call 941-9555 for an appointment. You must have an appointment.
Boyd also stated that the Board is reviewing the lawn maintenance/mowing contract for lack of performance.
Boyd also stated that the Board may hold a special meeting regarding the septage treatment plant and the proposed mandatory participation of the townships. Anyone with an opinion on this matter was encouraged to discuss with the Township Supervisor. The special meeting may also include the Master Plan discussion from this meeting of the Planning Commission in order for the process to move ahead.
Chair
No report.
Old Business
1. ZBA Zoning Ordinance – Article 18
Zakrajsek suggested that based on Mr. DeLong's public comments, should this be reviewed later.
Discussion:
Meyers stated there is a vast difference between use variances and specifying uses not listed. She referred to her memo dated 06/23/09 entitled ZBA Ordinance and Variances. Use variances have been addressed 28 times by the ZBA since the creation of the ZBA in the 1970's. Not all of them were granted; however, Meyers' interpretation is that the ZBA has the authority to grant them in accordance with law.
Meyers stated that the Township Board is interested in the outcome of this discussion. If use variances are not granted, the outcome of Paragon v The City of Novi should be reviewed. The ruling states there must be certain types of appeals processes. If the Planning Commission chooses to recommend to the Township Board not to allow use variances, there should be a provision somewhere in the ordinance addressing them; some legal means if use variances will not be considered. Some options:
1. Conditional rezoning: applicant requests the Township Board approve a conditional rezoning under a certain set of conditions.
2. Hardship PUD: would give someone the ability to state reasons that they cannot use the property for what it is zoned for, and what they propose.This allows more flexibility than current PUD. May be more excessive than a normal PUD; this provision would have to be reviewed in more detail.
3. If the Planning Commission chooses to allow the ZBA to grant use variances, they could take a Planning Commission review and report before they make a decision.
4. The Michigan Zoning Enabling Act affirms the fact that the ZBA has the authority to grant use variances.
Mangus stated that common sense and reasonableness needs to apply in certain situations. If the authority is removed from the ZBA to grant use variances, an alternative should be developed. Supports idea of Planning Commission review and approval.
Boyd stated the Planning Commission must take into consideration what has been done in the past. Our history is clear that they have been addressed; some have been approved and some not. Authority for granting belongs with the ZBA.
Lynn DeLong stated Board does not have the authority to allow the ZBA to grant a use variance; it may grant dimensional variances. The people buy into the Ordinance for uniformity within the community and now exceptions will be made. You are asking for confusion; the public will not know why you did it when they have certain expectations.
If the expectations change, you need to explain it or you will be in court continuously.
Mangus stated it is the hope that the Ordinance is based on the desire of the community and that it is understood that there will be an alternative based on reasonableness in extenuating circumstances. People buy into reasonableness when problems arise. Perhaps the Ordinance needs to be clarified, but it should not be eliminated.
Boyd stated we are addressing a decision that was made in the past and we are now reviewing and discussing it and using a democratic process.
Topic needs more thought and discussion; does not need to be resolved within the next 30 days.
Mangus moved, seconded by Miller, to clarify an ordinance to allow the ZBA to address use variances. Motion approved 6-0.
Meyers will review the discussion of this meeting and will include it in the rationale, reasoning and rules in a revised ordinance to be brought back for consideration at the next meeting. Meyers clarified that it doesn't necessarily mean it will be approved, but it is giving Meyers the intended direction.
2. Master Plan – RFP for Community Survey Update
Meyers stated McKenna & Associates were chosen as the consultants. The survey design team will meet again on 07/14/09 at 6:00 p.m. to formulate their goals and objectives for the survey process. Following that they will be working on topics. The plan and course of action includes 3 meetings of the survey design team and consultants prior to the survey being mailed out; postcards will be sent to all property owners (they reduced the list of unique property owners to 1,425, and are hoping to reduce it further if possible) to inform them they will receive a survey in about 1-2 weeks.After the completed surveys are returned, the consultant will compile, review and analyze the data and make a formal presentation. Mailing of the surveys will take place mid-to late September with a goal of getting results before the end of December. The Master Plan could then be reviewed in January.
Public Comment
Lynn DeLong, 722 Island View Drive
Applauds the Planning Commission for reviewing the ZBA ordinance; assumes it will be reviewed in depth. As a former ZBA member, it is very technical information. Lawsuits arise when people are dissatisfied because somehow you did not live up to their expectations you gave them in the first place. There are all kinds of ways to interpret things and change them around but do they serve the end means of what you want to establish in the community -- honesty, clarity, something people can trust and depend on? If that is not there you will have dissatisfaction within the community. Develop fairness and common sense into the program. Is for example allowing a use variance common sense? Why would the State of Michigan in all its wisdom -- have stipulated in the law that the ZBA does not have the authority under certain conditions?
Continuing Education - Lakefront Issues
This topic was adjourned to the next meeting to enable use of the slideshow projector.
Motion by Boyd, second by Courtade, to adjourn the meeting at 8:55 p.m. Motion approved 7-0.
Respectfully submitted,
Patricia Pulver, Recording Secretary